THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4900/06 by A. against the Netherlands

The European Court of Human Rights (Third Section), sitting on 17 November 2009 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura , Corneliu Bîrsan , Boštjan M. Zupančič , Alvina Gyulumyan , Egbert Myjer , Luis López Guerra , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 1 February 2006,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by Governments of Lithuania, Portugal, Slovakia and the United Kingdom and the comments submitted by the following non-governmental organisations: the AIRE Centre, Interights (also on behalf of Amnesty International Ltd., the Association for the Prevention of Torture, Human Rights Watch, the International Commission of Jurists, and Redress), Justice and Liberty,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr A. is a Libyan national who was born in 1972 and lives in Eindhoven . He is represented before the Court by represented by Mr Ph.J. Schüller and Mr M. Ferschtman, both lawyers practising in Amsterdam . The Dutch Government (“the Government”) are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties, may be summarised as follows.

1. The proceedings on the applicant ’ s asylum request

3 . The applicant entered the Netherlands on 25 November 1997 and applied for asylum. In the course of interviews held with immigration officials on 25 November 1997 and 16 December 1997, he stated that he feared persecution in Libya for his involvement since 1988 in a clandestine, nameless opposition group . The applicant cited the names of nine members of this group, including X. and Y. who had had contacts with opposition groups abroad. The activities of the group consisted of holding regular meetings (once or twice per week) , distributing pamphlets and informing people about the Libyan regime by inter alia distributing publications by the Libyan opposition abroad. Th e group had begun having problems with the Libyan authorities as from late 1992 or early 1993 when a first group member , X., had been arrested. He had been executed in prison and, together with many others, the applicant had attended X. ’ s funeral. More arrests of group members followed and the group had met for the last time in the end of 1993. W hen virtually all his 10-15 friends in this group had been arrested and detained, the applicant decided to flee Libya which he did by the end of 1994 without, however, having himself encountered any problems with the Libyan authorities. He had learned later that three of the arrested group members, including Y. had been released.

4 . He had left Libya by bus via an official Libyan-Egyptian border crossing. The bus driver had collected the passports of all passengers and had taken them to the control post. He could not remember whether his passport had been stamped. After his departure for Saudi Arabia , he had learned from pilgrims whom he had met that his younger brother and brother-in-law had been arrested . He did not know what had happened with them since . After a brief illegal stay in Saudi Arabia where he had lost his passport, the applicant travelled on to Yemen where he stayed for about eights months, mostly in an aliens ’ detention centre. Attempts by the Libyan consul in Yemen to have him expelled to Libya failed on account of the applicant ’ s refusal to cooperate. In August 1996, after having obtained a forged Libyan passport and released from detention in Yemen , the applicant travelled to Sudan . After the Libyan authorities had sent officials to Sudan in order to trace Libyans in Sudan who were listed as opponents of the Libyan regime and to seek the transfer of these persons to Libya , the applicant no longer felt safe in Sudan and travelled to the Netherlands .

5 . On 27 February 1998, the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the applicant ’ s asylum request. The Deputy Minister did not find it established that the applicant had attracted the negative attention of the Libyan authorities. His alleged membership of a nameless opposition group had remained unsubstantiated and he had failed to give clear information about the group ’ s aims and manner in which it sought to realise these aims. Even assuming that the applicant was associated with this group, he had never held any function of significance within this group and had never encountered any personal problems with the Libyan authorities. On this point, the Depu ty Minister noted that about 10- 15 persons belonging to that group had allegedly been arrested and detained in 1993 whilst the applicant had stayed in Libya until the end of 1994 without having encountered any problem. Moreover, he had left Libya holding an authentic passport in his own name. The Deputy Minister therefore concluded that, even assuming that the applicant had been involved in this opposition group, this had not become known to the Libyan authorities. The Deputy Minister further did not find it established that the applicant, if expelled to Libya , would be exposed to a real and personal risk of being subjected to treatment in breach of Article 3 of the Convention. On 3 March 1998 the applicant filed an objection ( bezwaar ) against that decision with the Deputy Minister.

6 . As the applicant ’ s objection was denied suspensive effect as regards his expulsion from the Netherlands , he applied on 7 April 1998 for a stay of expulsion by way of a provisional measure ( voorlopige voorziening ) with the Regional Court ( rechtbank ) of The Hague sitting in ‘ s-Hertogenbosch.

7 . In support of his objection, the applicant submitted two statements issued by “The National Front for the Salvation of Libya” (“NFSL”) dated 1 February 1998 and 15 June 1998, respectively. According to these statements, the applicant was a sympathiser of this organisation and had disseminated NFSL materials in Libya . The NFSL had learned this through X. with whom the NFSL had had contacts for the purposes of the distribution of NFSL materials in Libya .

8 . On 5 October 1998 the Deputy Minister dismissed the applicant ’ s objection. On 22 October 1998 the applicant filed an appeal against this decision with the Regional Court of The Hague.

9 . On 9 November 1998 the President of the Regional Court of The Hague sitting in ‘ s Hertogenbosch granted the applicant ’ s request for a provisional measure and ordered the stay of the applicant ’ s removal until four weeks after the determination of the applicant ’ s objection.

10 . On 30 December 1998, the applicant was informed that – having noted the ruling of 9 November 1998 – the Deputy Minister had withdrawn the decision of 5 October 1998 and would take a fresh decision. Consequently, the applicant withdrew his appeal of 22 October 1998.

11 . On 15 June 1999, the Netherlands Ministry of Foreign Affairs started an investigation into the NFSL and the reliability of documents issued by this organisation. The results of this investigation were set out in an official report ( ambtsbericht ), issued by the Ministry of Foreign Affairs on 20 August 1999.

12 . In a fresh decision taken on 30 December 1999, the Deputy Minister of Justice again dismissed the applicant ’ s objection of 3 March 1998, finding that the NFSL statements could not serve in substantiation of the applicant ’ s account. The Deputy Minister did not find it established that the applicant had attracted the negative attention of the Libyan authorities or that he found himself in an acute flight situation. The Deputy Minister further found no reasons for accepting the applicant ’ s argument that his expulsion to Libya would be in violation of his rights under Article 3 of the Convention.

13 . On 10 February 2000, the applicant filed an appeal against this decision with the Regional Court of The Hague as well as a request for a provisional measure.

14 . By letter of 16 April 2003, the Minister for Immigration and Integration ( Minister voor Immigratie en Integratie ; the successor of the Deputy Minister of Justice) withdrew the decision of 30 December 1999. As the applicant was allowed – pursuant to the ruling of 9 November 1998 – to remain in the Netherlands pending the proceedings on his objection, he withdrew his appeal and request for a provisional measure filed on 10 February 2000 with the Regional Court of The Hague.

15 . On 16 June 2003, after the applicant had been heard on this objection on 12 June 2003 before an official commission ( ambtelijke commissie ), the Minister rejected the applicant ’ s objection of 3 March 1998. In this decision, the Minister further decided not to grant the applicant an ex officio residence title on account of the duration of the still pending proceedings on his asylum request ( tijdsverloop in de asielprocedure ).

16 . On 17 June 2003, the applicant filed an appeal with the Regional Court of The Hague against the rejection of his objection of 3 March 1998 as well as a request for a provisional measure.

17 . On the same date, the applicant filed an objection with the Minister against the decision of 17 June 2003 not to grant him a residence title on account of the length of the determination of his asylum request, as well as a request with the Regional Court for a provisional measure.

18 . On 10 July 2003, the Minister informed the applicant that he would not be expelled pending the decision on the provisional measure request he had filed in the context of his asylum request.

19 . On 17 July 2003, the Minister withdrew the decision of 16 June 2003 in respect of the applicant ’ s asylum request. Consequently, the President of the Regional Court of The Hague sitting in Middelburg declared inadmissible the applicant ’ s provisional measure request filed in the proceedings on his asylum request as, pursuant to the ruling of 9 November 1998, the applicant was allowed to remain in the Netherlands pending the proceedings on his objection of 3 March 1998.

20 . On 28 January 2004, after the applicant had been heard on 8 December 2003 before an official commission and had submitted a statement dated 25 November 2003 from the Geneva-based Libyan League for Human Rights (“LLHR”) according to which the applicant was a member of this organisation and for that reason would be persecuted and imprisoned, possibly executed, if he would be expelled to Libya, the Minister rejected the applicant ’ s objections of 3 March 1998 and 17 June 2003.

21 . On 29 November 2004 the Regional Court of The Hague sitting on Middelburg accepted the two separate appeals filed by the applicant and remitted the case to the Minister for fresh decisions.

22 . On 17 May 2005, the applicant was heard before an official commission on his objections of 3 March 1998 and 17 June 2003. In the course of this hearing, the applicant was informed of the Minister ’ s intention ( voornemen ) to impose an exclusion order ( ongewenstverklaring ) on him, as he was considered to pose a threat to national security (see below § 46 ). At his lawyer ’ s advice, the applicant did not wish to react on that intention during this hearing.

23 . On 3 November 2005, the Minister rejected the applicant ’ s objections of 3 March 1998 and 17 June 2003. Referring to an individual official report on the applicant drawn up on 9 February 2005 by the General Intelligence and Security Service ( Algemene Inlichtingen- en Veiligheidsdienst ; “AIVD”), the Minister noted that the AIVD considered the applicant to constitute a danger to national security (see below § 33 ). Noting that, after having granted access to the underlying materials of the AIVD individual official report of 9 February 2005, the Immigration and Naturalisation Department ( Immigratie- en Naturalisatiedienst ) of the Ministry of Justice had concluded on 6 October 2005 that this report, both as regards its content and procedure, had been drawn up in a careful manner and that it provided insight in a logical, transparent manner, the Minister accepted the correctness of the individual official report of 9 February 2005. Consequently, in accordance with the case-law of the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ), the finding that the applicant represented a danger for national security was, in itself, a sufficient ground for rejecting his asylum request and to deny him a residence permit on account of the duration of the proceedings on his asylum request. Moreover, the Minister found no indications in the case that in Libya the applicant would have to fear persecution within the meaning of the 1951 Convention Relating to the Status of Refugees. Following an extensive examination of the applicant ’ s account, the Minister did not find it established that the applicant had attracted the negative attention of the Libyan authorities on grounds of his alleged involvement with the NFSL or his involvement with and marginal activities for the LLHR in the Netherlands . The Minister did not find it established that – on account of the criminal proceedings taken against the applicant in the Netherlands (see below §§ 34 - 38 ) or his very marginal opposition activities – the applicant would be exposed in Libya to a real risk of being subjected to treatment prohibited under Article 3 of the Convention.

24 . On 8 November 2005, the applicant filed two separate appeals (one against the refusal to grant him asylum and the other one against the refusal to grant him a residence title on account of the duration of the still pending asylum proceedings) and, having been informed that he was not allowed to await the outcome of those appeals in the Netherlands, also two separate requests for a provisional measure with the Regional Court of The Hague. In addition, as the Minister had decided on 4 November 2005 to impose an exclusion order on the applicant against which the applicant had filed an objection ( see below § 49 ), he also applied for a provisional measure allowing him to remain in the Netherlands pending the determination of this objection by the Minister.

25 . In the proceedings on these appeals and requests for a provisional measure and with the parties ’ consent, the provisional-measures judge ( voorzieningenrechter ) of the Regional Court of The Hague sitting in Zwolle was granted access to the materials underlying the AIVD individual official report of 9 February 2005 without these materials be ing disclosed to the applicant.

26 . On 1 February 2006, the provisional-measures judge of the Regional Court of The Hague sitting in Zwolle rejected the applicant ’ s two requests for a provisional measure as well as his two appeals against the Deputy Minister ’ s decision of 3 November 2005. After having verified personally and accepted that the conclusions drawn in the AIVD official report of 9 February 2005 were sufficiently supported by the underlying materials, the provisional-measures judge accepted the Minister ’ s conclusion that the applicant was posing a threat to the national security and could for that reason be denied a Netherlands residence title, either for asylum or on account of the duration of the proceedings on his asylum request.

27 . The provisional-measures judge further accepted the reasons given by the Minister for concluding that it had not been established that the applicant, if expelled to Libya, would be exposed to a risk of being subjected to treatment in breach of Article 3 of the Convention on account of his alleged involvement with the NFSL or his involvement with and activities for the LLHR in the Netherlands. Further noting that, when the applicant was presented at the Libyan mission for the purposes of obtainin g travel documents (see below § 56 ), the Netherlands authorities had only provided the mission with extremely neutral information about him, the provisional-measures judge also did not find it established that the applicant would be exposed to such a risk in Libya for being an expel led unsuccessful asylum seeker.

28 . As to the applicant ’ s further argument that, given the publicity attracted by the criminal proceedings taken against him before th e Rotterdam Regional Court , the Libyan authorities had become aware of the nature of the suspicions having arisen against him in the Netherlands and that he would also for that reason risk treatment contrary to Article 3 of the Convention in Libya, the provisional measures judge held, referring to the general principles under Article 3 of the Convention as defined by the Court in its judgments in the cases of Vilvarajah and Others v. the United Kingdom , (judgment of 30 October 1991, Series A no. 215) and Venkadajalasarma v. the Netherlands (no. 58510/00, 17 February 2004), that also this had not been established. No information about the applicant ’ s trial had been given to the Libyan mission when the applicant was presented for the purpose of obtaining t ravel documents . Even assuming that the Libyan authorities would have become aware of these criminal proceedings in another manner, this was in itself not sufficient for accepting as plausible that the applicant would thus risk treatment contrary to Article 3 in Libya . Also the applicant ’ s reliance in this context on documents of a general nature about the general attitude of the Libyan authorities was insufficient for finding this risk established. The provisional-measures judge found that the applicant had not submitted, let alone demonstrated, facts or circumstances relating to him personally leading to the conclusion that he, if expelled to Libya, would risk such treatment, and that in this respect he had only made a mere reference to the suspicions arisen against him, the ensuing criminal proceedings and speculated about the possible consequences thereof upon his return to Libya. According to the provisional-measures judge is was, however, not for the Minister to demonstrate that the alleged risk actually did not exist.

29 . As regards the applicant ’ s request for a provisional measure in relation to his objection against the decision to impose an exclusion order on him, the provisional-measures judge acknowledged that it was difficult for the applicant to furnish proof and for the Minister to offer relief in this respect. However, as the provisional-measures judge himself had been given access to the materials underlying the AIVD individual official report on the applicant of 9 February 2005, there was an extra guarantee for the due care with which the conclusions made in this report were drawn and formulated. The provisional-measures judge accepted that these underlying materials could carry the conclusions drawn in the report of 9 February 2005 and that therefore the Minister could impose an exclusion order on the applicant on the basis of that report. In so far as the applicant relied on Article 3 of the Convention, the provisional-measures judge reiterated his finding that the applicant had not demonstrated that he, if expelled to Libya , would be exposed to a risk of treatment prohibited by Article 3 of the Convention. Pursuant to article 117 § 2 of the 1965 Aliens Act ( Vreemdelingenwet ), no further appeal lay against this ruling of the provisional-measures judge.

2. Relevant official reports drawn up by the Netherlands intelligence and security services

30 . On 22 April 2002, the Netherlands National Security Service ( Binnenlandse Veiligheidsdienst – “BVD”) sent an official report to the national public prosecutor responsible for combating terrorism ( landelijk officier van justitie terrorismebestrijding ), part of which reads as follows:

“In the framework of its statutory task, the BVD is investigating a network active in the Netherlands which is associated with Islamic terrorist organisations. It concerns the Groupe Salafiste pour la Prédication et le Combat (GSPC); an organisation that works from the same ideological basis as the Al Qaeda network. The GSPC is an Algerian extremist Islamic organisation of which it is generally known that it has prepared and carried out attacks in Algeria and elsewhere.

The part of this network which is active in the Netherlands is in particular involved in providing material, financial and logistical support and in propagating, planning and actually using violence for the benefit of the international jihad. The members of this network understand jihad as the armed battle in all its forms against all enemies of Islam, including the (for them) unacceptable governments in the Middle East and the United States [of America ].

It appears from the investigation conducted by the BVD that the part of this network which is active in the Netherlands is implicated in closely interwoven activities which complement and reinforce each other and which serve the same goal, namely the waging of jihad. The most important activities are the following:

- The network is active in assisting in the entry [into the Netherlands ], housing and transit of persons having actively participated in jihad. The members of the network provide these persons with (forged) identity papers, money and shelter. These persons possibly include fighters coming from an area where an armed conflict is ongoing. It is not excluded that at the addresses cited below [of the persons belonging to the part of the network active in the Netherlands ] persons as referred to above are also being sheltered,

- The network is active in recruiting young men in the Netherlands for effectively conducting jihad. To this end, these young men are incited to prepare for martyrdom and they are enabled materially, financially and logistically to leave for a battle scene. As an example, one can think of Kashmir where earlier this year two young Dutch men of Moroccan origin were killed. In this context a battle scene must be interpreted broadly, including areas where there is an armed conflict between different parties, but also terrorism,

- The part of this network which is active in the Netherlands finances its own activities with proceeds from trading in and exporting hard drugs. It must be emphasised that it has appeared to the BVD that the trade in and export of hard drugs as well as the forcing into submission of those involved in the trade and transport are religiously sanctioned. This means that the proceeds of the trade in and export of hard drugs are used for the commonly subscribed goal of jihad, and that disobedience is labelled as apostasy and severely punished. In this context, the BVD knows that a member of this network who has embezzled a quantity of drugs is regarded as an apostate and is currently searched for by members of this network active in the Netherlands . It appears from recorded telephone conversations that violence will be used against this person. It appears from the terminology used that there is a serious risk of liquidation.

- Lastly it must be noted that these activities take place in an organisational setting. Facilitation, falsification, recruitment, financing and liquidation for the benefit of jihad always take place in mutual consultation and coordination between members of this network. The activities of the network have been continuing in any event from 2001 to date. ... ”

31 . On 29 May 2002, pursuant to the 2002 Intelligence and Security Services Act ( Wet op de inlichtingen- en veiligheidsdiensten ), the BVD was succeeded by the General Intelligence and Security Service ( Algemene Inlichtingen- en Veiligheidsdienst – “AIVD”).

32 . On 27 August 2002, the Acting Head of the AIVD sent a further official report to the national public prosecutor responsible for combating terrorism. This report reads in its relevant part:

“ I. The recruitment network

In the exercise of its statutory task, it has appeared to the AIVD from reliable, vulnerable sources, that a network of extremist muslims is active in the Netherlands which is in particular involved in providing material, financial and logistical support and in propagating, planning and inciting to actually using violence for the benefit of the international jihad. The members of this network understand jihad as the armed battle in all its forms against enemies of Islam, including the (for them) unacceptable governments in the Middle East and the United States [of America ].

It has been established that the network, in a series of similar activities, is currently preparing and organising of in any event two, possibly even more, and for the time being unidentified jihadists. These persons will travel to a, for the time being unknown, area where the battle is currently actually being held, with the aim of becoming a martyr. The departure of both unidentified jihadists would be imminent.

It can be said in general that currently there is a clear increased activity within the network, which appears to indicate an imminent departure or other covert activities of the network in a very near future.

Investigation has shown that the above network provides support to or forms a part of the Al Qaeda organisation of Osama Bin Laden.

II. The activities of the network

The most important activities of the network are:

The recruitment of young men for effectively conducting jihad. To this end, it is p ropagated that it is the duty for muslims to wage jihad and are young men incited to prepare for martyrdom.

The materially, financially and logistically enabling of jihadists to leave in the direction of a battle scene. The necessary funds are gathered inter alia by collecting money in mosques in various European countries, including the Netherlands .

Lastly it must be noted that these activities take place in an organisational setting. Recruitment, facilitating and financing for the benefit of jihad always take place in mutual consultation and following coordination between members of this network.

III. Important persons in the network

In the recruitment network the following persons play a prominent role: ...

2. [the applicant] alias ... alias ...

IV. The activities of the important persons in the network

...

2. [the applicant]

To recruit and motivate jihad-fighters

- [the applicant] is held in high esteem amongst North-African youngster to be recruited, also by his past of mujahedin in Afghanistan . [The applicant] also indicates that on e day he wishes to die as martyr for the faith.

- On 9 August 2002 [the applicant] tells ... that he is prepared to participate, that he “is ready for it”; but this has to stay very secret.

- On 20 April 2002 a meeting was held in Roermond, organised by opponents of the violent jihad. [The applicant] wants to attend this meeting together with ... with the aim of letting the attending youngsters hear an alternative sound (in casu pro-jihad).

- On or around 13 May 2002 [the applicant] asks unknown brothers in Alphen aan de Rijn whether they are prepared to leave. These brothers “do not mind going”.

To organise and facilitate jihad-journeys

- [The applicant] tells on 9 August 2002 that the departing jihadists are going to buy passports (“books”) and that the price of passports depends on the duration of validity (in casu six months or longer).

- [The applicant] reports on 12 May 2002 to a person having remained unidentified that fighters are needed and that there is a new, easier route, provided one disposes of good documents.

- Together with ... [the applicant] has collected money in the Netherlands , in particular in Eindhoven , in any event by the end of 2001. The proceeds of these collection activities was several ten thousands of [ Netherlands ] guilders and would, according to [the applicant] and ... be for the benefit of the Taliban.”

33 . On 9 February 2005, the AIVD drew up an individual official report on the applicant, according to which he was classified as a danger for national security. It had become known to the AIVD that the applicant was playing a prominent role in a jihad recruitment network active in the Netherlands which, in the opinion of the AIVD, constituted a threat to national security. The AIVD had further learned that the applicant had been a mujahidin, and that he was active as motivator of jihad fighters, as facilitator of jihad journeys and as jihad recruiter.

3. The criminal proceedings against the applicant

34 . On the basis of the BVD official report of 22 April 2002 (see above § 30 ) and the AIVD official report of 27 August 2002 (see above § 32 ) as transmitted by the national public prosecutor responsible for combating terrorism to the Public Prosecution Service ( Openbaar Ministerie ), two criminal investigations were opened. These two investigations were later joined. In the course of this investigation suspects were arrested and premises searched where these suspect were living or staying. In the course of these searches a large quantity of books, documents and audio/audiovisual m aterials were found and seized.

35 . The applicant was arrested on 30 August 2002 and detained on remand on suspicion of belonging to a criminal organisation with the alleged aim of prejudicing the Netherlands State by providing assistance to the enemy conducting a holy war (jihad) against – amongst others – the Netherlands; and which organisation is further involved in drug-trafficking, forgery of (identity) documents, using false (identity) documents, human trafficking and possession of illegal fire arms. These suspicions were based on the content of various intelligence reports drawn up by the BVD/AIVD.

36 . The applicant and eleven co-suspects were subsequently formally charged and summoned to appear before the Rotterdam Regional Court in order to stand trial. The “ Rotterdam jihad trial” proceedings attracted considerable media attention and a photograph of the applicant appeared in various printed media. In a number of publications, the applicant ’ s name and nationality were mentioned.

37 . In its judgment of 5 June 2003, the Rotterdam Regional Court acquitted the applicant and his co-accused of all charges, finding that these had not been legally and convincingly substantiated. The Rotterdam Regional Court held that the BVD/AIVD official reports submitted by the prosecution could not be used in evidence, as the Head and Deputy Head of the AIVD – who had been examined by the investigation judge as well as before the Regional Court – and the national public prosecutor responsible for combating terrorism had refused to give evidence about the origins of the information set out in these official reports, invoking their obligation to observe secrecy under the 2002 Intelligence and Security Services Act whereas, in accordance with a decision of 2 May 2003, the Minister of the Interior and Kingdom Relations ( Minister van Binnenlandse Zaken en Koninkrijksrelaties ) and the Minister of Justice ( Minister van Justitie ) had not released them from that obligation in the event of their being called as witnesses in the criminal proceedings in issue. As a result, the defence had not been given the opportunity to verify in an effective manner the origins and correctness of the information set out in these official reports. The Regional Court considered that there was no basis in law for taking another approach, to the effect that the strictness of evidentiary rules would depend on the seriousness of the offence of which a person was suspected. Consequently, although it acknowledged that the obligation of secrecy at issue was certainly justified in cases concerning national security and found that the public prosecutor had not unlawfully used the material supplied by the BVD/AIVD in the determination of the question whether there was a serious suspicion of an offence and in the decision to arrest the applicant, the Regional Court concluded that these BVD/AIVD reports could not be used in evidence against the applicant. The Regional Court did allow in evidence telephone conversations intercepted by the BVD/AIVD as the defence had been given the opportunity to verify their content.

38 . The prosecution initially lodged an appeal against this judgment but withdrew it on 6 September 2005, before the trial proceedings on appeal had commenced. According to a press release issued on 6 September 2005 by the Public Prosecution Service ( Openbaar Ministerie ), this decision was taken in view of new legislative developments, namely the Act on Terrorist Crimes ( Wet Terroristische Misdrijven ) – rendering inter alia recruitment for [Islamic] armed struggle a criminal offence – having already entered into force [on 10 August 2004] but without retroactive effect, and the advanced stage of adoption by Parliament of the Bill on the Protected Witnesses Act ( Wetsvoorstel voor de Wet Afgeschermde Getuigen ) providing for the possibility of using official reports of the AIVD in evidence.

4 . The proceedings on the applicant ’ s request for disclosure of materials underlying the AIVD individual official report of 9 February 2005

39 . Om 26 July 2005 and under article 47 of the Intelligence and Security Services Act 2002, the applicant requested access to the materials underlying the conclusions set out in the AIVD individual official report of 9 February 2005 (see above § 33 ).

40 . On 27 July 2005, the Minister of the Interior and Kingdom Relations informed the applicant that his request would be taken into consideration as soon as he would have provided the Minister with a legible copy of a valid identification document and that following receipt of this document, his request would be determined within three months at the utmost. Failure to do so would entail that his request would not be taken into consideration. The applicant complied with this request on 9 August 2005 by submitting a copy of his Netherlands aliens ’ identity card (“W-document”), the validity of which, however, had expired on 20 November 2004.

41 . By letter of 1 September 2005, the Minister informed the applicant that his request for access would not be considered as he had failed to submit a valid identity document, as required pursuant to article 47 § 3 of the Intelligence and Security Services Act 2002 and the pertaining Explanatory Memorandum.

42 . On 11 October 2005, the applicant filed a fresh request with the Minister for access to the materials underlying the conclusions set out in the AIVD individual official report of 9 February 2005 and, on the same day, filed an objection against the Minister ’ s decision of 1 September 2005 in which he argued that it could not be derived from Explanatory Memorandum to the Intelligence and Security Services Act 2002 that for a proper determination of the identity of a petitioner only a valid identity document can be used. The applicant attached a copy of his valid “W-document” for the purposes of a reconsideration of the d ecision in the objection phase.

43 . On 20 December 2005, following a hearing held on 16 November 2005, the Minister accepted the objection now the applicant had submitted a copy of his valid “W-document” and decided to take his request for access into consideration. As to the applicant ’ s fresh request for access, the Minister referred to his decision on the mer its of the applicant ’ s request.

44 . In a new decision taken on the a pplicant ’ s access request on 20 December 2005, the Minister held that, pursuant to article 53 § 1, article 55 § 1 (b) in conjunction with article 15 opening words under (b), and Chapter 4 of the Intelligence and Security Services Act 2002, no information can be provided about the AIVD ’ s current level of knowledge, its sources and its working methods. Consequently, the Minister rejected the applicant ’ s request in so far as it concerned request for access to current data. As the official report at issue concerned Islamic terrorism which was a topical subject within the meaning of article 53 § 1 (b) of the Intelligence and Security Services Act 2002, national security interests opposed providing further information. The Minister further stated that no outdated data on the applicant had been found in the archives of the AIVD and its predecessor the BVD.

45 . On 30 January 2006, the applicant filed an objection with the Minister against the decision of 20 December 2005. No further information about these proceedings has been submitted.

5 . The proceedings on the decisi on to impose an exclusion order

46 . On 17 May 2005 the Minister of Immigration and Integration informed the applicant of the intention ( voornemen ) to impose an exclusion order on the applicant, as he was considered to pose a threat to national security, which conclusion was based on an individual official report drawn up on the applicant b y the AIVD on 9 February 2005 ( see above § 33 ) and which had been communicated to him on 11 April 2005.

47 . On 23 June 2005 and 5 August 2005, the applicant filed written comments on the intention with the Minister. He contested posing a threat for national security and argued inter alia that such an exclusion order would be in violation of his rights under Article 3 of the Convention in that his expulsion to Libya would expose him to a real risk of treatment contrary to this Convention provision.

48 . On 6 October 2005, after having been given access to the underlying materials of the AIVD individual official report of 9 February 2005, the Immigration and Naturalisation Department of the Ministry of Justice concluded that this report, both as regards its content and procedure, had been drawn up in a careful manner and that it provided insight in a logical, transparent manner.

49 . On 4 November 2005, the Minister of Immigration and Integration decided to impose an exclusion order on the applicant, rejecting the applicant ’ s arguments to the effect this was contrary to his rights under Article 3 of the Convention. This decision was notified to the applicant on 8 November 2005. On the same day, the applicant filed an objection against this decision with the Minister and, as he was not allowed to await the outcome of his objection in the Netherlands , also a request for a provisional measure with the Regional Court of The Hague.

50 . On 1 February 2006, following a hearing held on 6 December 2005, the provisional-measures judge of the Regional Court of The Hague sitting in Zwolle rejected the applicant ’ s request for a provisional measure (see above §§ 26-29 ).

51 . The Minister rejected the applicant ’ s objection against this decision on 7 April 2006. On 12 April 2006, the applicant filed an appeal against this decision as well as a fresh request for a provisional measure with the Regional Court of The Hague.

52 . On 30 August 2006, the Regional Court of The Hague sitting in Haarlem rejected the applicant ’ s request for a provisional measure.

53 . On 5 March 2007, following a hearing held on 23 November 2006, the Regional Court of The Hague sitting in Haarlem rejected the applicant ’ s appeal against the decision of 7 April 2006. It noted the final judgment of 1 February 2006 by the provisional-measures judge of the Regional Court of The Hague sitting in Zwolle, and found that no facts or circumstances had appeared on the basis of which it should now reach another conclusion as regards the AIVD individual official report of 9 February 2005 or should reach a different decision in respect of the applicant ’ s claim under Article 3 of the Convention. In this context, it further considered that this was not altered by the fact that on 2 February 2006 the European Court of Human Rights had issued an interim measure within the meaning of Rule 39 of the Rules of Court in connection with the applicant ’ s possible removal to Libya, as this measure did not imply that the Court had reached the conclusion that the applicant ’ s expulsion to Libya would be contrary to Article 3 of the Convention. It further considered, as it could only assess on an ex tunc basis the lawfulness of the decision to declare the applicant an undesirable alien, that it could not take into account the policy decision to install a moratorium on expulsions for Libyan asylum seekers (see below § 81 ) or the facts and circumstances having led to that policy decision as it had been taken after the impugned decision.

54 . The applicant ’ s subsequent appeal to the Administrative Jurisdiction Division of the Council of State was dismissed on 15 May 2007. It upheld the ruling of 5 February 2004 of the Regional Court . It found that the applicant ’ s appeal did not provide grounds for quashing the impugned ruling ( kan niet tot vernietiging van de aangevallen uitspraak leiden ) and that, having regard to Article 91 § 2 of the 2000 Aliens Act, no further reasoning was called for as the arguments submitted did not raise questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.

6 . The proceedings on the applicant ’ s placement in aliens ’ detention

55 . On 19 May 2003, the applicant was placed in aliens ’ detention for removal purposes. On 17 June 2003, following a hearing held on 27 May 2003, the Regional Court of The Hague dismissed the applicant ’ s appeal against the decision to place him in aliens ’ detention and his request for compensation. On 8 August 2003, the Administrative Jurisdiction Division accepted the applicant ’ s appeal against the ruling of 17 June 2003. Disagreeing with the Regional Court of The Hague, it held that the applicant had lawfully stayed in the Netherlands until 16 June 2003 when in the asylum proceedings the Minister had rejected the applicant ’ s objection of 3 March 1998 (see above § 15 ). Accordingly, it quashed the ruling of 17 June 2003, ordered the lifting of the detention measure, remitted the case to the Regional Court for a determination of the applicant ’ s compensation claim and issued an order for costs against the State.

56 . On 8 November 2005, after having been notified of the decision to impose an exclusion order on him, the applicant was again placed in aliens ’ detention for removal purposes. On 9 November 2005, the Brabant Zuid-Oost Aliens Police Department ( Vreemdelingenpolitie ) informed the Libyan mission in the Netherlands of this fact and the applicant ’ s name. As he did not hold any [travel] documents, the Aliens Police Department wished to make an appointment for presenting the applicant. On 10 November 2005, the applicant refused to cooperate in a presentation by telephone, as he was not allowed a prior consultation with his lawyer. Following a written protest by his lawyer, the State Advocate ( Landsadvocaat ) informed the applicant ’ s lawyer by letter of 11 November 2005 that no further contacts with the Libyan mission would be made by the Netherlands immigration authorities or any other administration for which the Minister for Immigration and Integration is responsible until the provisional-measures judge [of the Regional Court of The Hague sitting in Zwolle] would have given an ruling (see above §§ 2 4 -2 9 ).

57 . On 23 November 2005, following a hearing held on 16 November 2005, the Regional Court of The Hague sitting in Zutphen rejected the applicant ’ s appeal against the decision to place him in aliens ’ detention and his pertaining request for compensation.

B. Relevant domestic law and practice

1. Asylum proceedings

58 . Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act ( Vreemdelingenwet ). Further rules were laid down in the Aliens Decree ( Vreemdelingenbesluit ), the Regulation on Aliens ( Voorschrift Vreemdelingen ) and the Aliens Act Implementation Guidelines ( Vreemdelingencirculaire ). The General Administrative Law Act ( Algemene Wet Bestuursrecht ) applied to proceedings under the 1965 Aliens Act, unless indicated otherwise in this Act.

59 . Under article 11 of the 1965 Aliens Act, a residence permit may be issued to an alien:

(a) who is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951;

(b) who makes a plausible case that he or she has well-founded reasons for believing that, if expelled, he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment.

60 . On 1 April 2001, the 1965 Aliens Act was replaced by the 2000 Aliens Act. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the 2000 Aliens Act. Unless indicated otherwise in the 2000 Aliens Act, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence.

61 . According to the transitional rules, set out in article 11 of the 2000 Aliens Act, an application for a residence permit or for admission as a refugee which was being processed at the time this Act entered into force would be considered under an application under the provisions of the 2000 Aliens Act. Because no transitional rules were set for the substantive provisions of the aliens ’ law, the substantive provisions under the 2000 Aliens Act took effect immediately. However, pursuant to article 117 § 2 of the Aliens Act 2000, the procedural rules under the 1965 Aliens Act continued to apply to the processing of applications for a residence title submitted before 1 April 2001 when the 2000 Aliens Act entered into forces.

62 . One of the changes brought about under the 2000 Aliens Act was that the final decision on an asylum request is now taken by the Administrative Jurisdiction Division and no longer, as was the situation under the 1965 Aliens Act, by the Regional Court of The Hague. What remained unchanged is that judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the administrative authority concerned has exercised at the material time its administrative powers in a reasonable manner and whether this authority could reasonably have taken the impugned decision ( marginale toetsing ).

63 . Under article 29 of the 2000 Aliens Act, an alien is eligible for a residence permit for the purposes of asylum if, inter alia ,

- he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951, or

- he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.

2. Exclusion orders

64 . Under article 67 § 1 of the 2000 Aliens Act, an exclusion order can be imposed on an alien if, inter alia :

- he or she poses a threat to public order or national security and does not lawfully reside in the Netherlands ; and/or

- this is in the interest of the international relations of the Netherlands .

65 . An exclusion order entails a ban on residing in or visiting the Netherlands . An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for a period of ten years (article 68 of the 2000 Aliens Act).

66 . An exclusion order can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have an automatic suspensive effect.

67 . Article 197 of the Criminal Code ( Wetboek van Strafrecht ) provides that an alien , who stays in the Netherlands whil st know ing that an exclusion order has been imposed on him or her , commits a criminal offence punishable by up to six months ’ imprisonment or a fine of up to 4,500 euros.

3. The General Administrative Law Act

68 . Article 8:27 § 1 of this Act reads:

“Parties who have been summoned to appear ... before the court ... are obliged to appear and to provide the information requested. The parties ’ attention is drawn to this [obligation] as well as to article 8:31.”

69 . Article 8:29 of the Act provides:

“1. Parties who are obliged to submit information or documents may, when there are compelling reasons for so doing, refuse to provide information or submit documents or inform the court that it alone may take cognisance of the information or documents.

2. Compelling reasons shall in any event not apply to a public administration body in so far as the obligation exists pursuant to the Government Information (Public Access) Act to grant a requests for information contained in the documents to be submitted .

3. The court shall decide whether the refusal or limitation on taking cognisance as referred to in the first paragraph is justified.

4. Should the court decide that such refusal is justified, the obligation shall not apply.

5. Where the court decides that the restriction on taking cognisance is justified, it may, with the permission of the other party, give a ruling on the basis of, among other elements, the information or documents concerned. If permission [by the other party] is withheld, the case shall be referred to another bench.”

70 . Article 8:31 of the Act reads:

“If a party fails to comply with the obligation to appear, to provide information, to submit documents or to cooperate in an investigation [commissioned by the court from an expert appointed by the court] within the meaning of article 8:47 § 1, the court may draw such conclusions from this as it sees fit. ”

71 . Article 8:45 of the Act, in so far as relevant, reads:

“1. The court may request the parties and others, within a period fixed by the court, to provide written information and to submit documents held by them.

2. Administrative public bodies shall be obliged, also when they are not a party to the proceedings, to comply with a request within the meaning of the first paragraph. Article 8:29 shall apply by analogy. ...”

72 . Article 8:84 of the Act provides:

“The administrative authority shall act in accordance with the policy rule unless, due to special circumstances, the consequences for one or more interested parties would be out of proportion to the purposes of the policy rule.”

4. The Netherlands intelligence and security services

73 . An overview of the relevant domestic law and practice as regards the Netherlands intelligence and security services is set out in the Court ’ s decision on admissibility in the case of Brinks v. the Netherlands (no. 9940/04, 5 April 2005).

74 . Pursuant to article 15 of the Intelligence and Security Services Act 2002, the Heads of the intelligence and security agencies are to ensure the secrecy of data eligible for classification as confidential, the secrecy of sources eligible for classification as confidential from which data have been obtained, and the safety of persons with whose cooperation data are collected.

75 . Article 47 § 3 the Intelligence and Security Services Act 2002 reads:

“Our Minister concerned ensures a proper determination of the identity of the petitioner.”

76 . Article 53 § 1 of this Act provides as follows:

“A request within the meaning of Article 47 will in any case be rejected if:

a. if in the framework of any investigation data relating to the petitioner have been processed, unless:

1º the data concerned have been processed more than 5 years ago,

2º since then no new data relating to the petitioner have been processed in connection with the investigation in the framework of which the data concerned were processed, and

3º the data concerned are not relevant for any current ongoing investigation;

b. no data relating to the petitioner have been processed.

2. If a petition is rejected under the first paragraph, the reasons given for the refusal shall only indicate in general terms all grounds for refusal mentioned in that provision.”

77 . Article 55 § 1 (b) of the Act states:

“A request within the meaning of Article 51 [request for access to other data than personal data] will be rejected in so far as providing the data to which the request relates: ...

b. could harm the national security;”

78 . Article 87 of the Act reads:

“1. If in administrative law proceedings concerning the application of this Act ... Our Minister concerned ... is obliged by the court under article 8:27, 8:28 or 8:45 of the General Administrative Law Act to provide information or to submit documents, article 8:29 §§ 3-5 of that Act does not apply. If Our Minister ... informs the court that only the court may take cognisance of, respectively, information or documents [requested by the court], the court may only with permission of the other party give judgment based also on such information or documents. If Our Minister concerned refuses to provide information or to submit documents, article 8:31 of the General Administrative Law Act shall remain applicable.

2. If Our Minister is required to submit documents to the court, consultation of the documents concerned shall be sufficient. In no circumstances may a copy be made of the documents concerned.”

5 . Official country assessment report on Libya of the Netherlands Ministry of Foreign Affairs

79 . On 20 November 2002, the Netherlands Ministry of Foreign Affairs issued an official country assessment report on Libya , which deals in particular with the treatment in Libya of returned unsuccessful asylum seekers. The relevant parts of this report read:

“The actual power in Libya lies with Gaddafi and some trustworthy persons from the revolution. Gaddafi is the leader of the revolution and also commander in chief of the armed forces. Gaddafi has reinforced his position in the course of the years, inter alia by forming revolutionary committees who in his name control daily life.

The Libyan legislation prohibits opposition to the current regime. Also party-political activities are not allowed. The Libyan authorities are alert as regards opposition against the regime and in particular in respect of M uslim fundamentalism.

Gaddafi act s hard against (alleged) opposition groups. The opposition both in Libya and abroad seems too divided for being able to form a front against the authorities. ... In the past opponents of the regime were executed, inter alia , by public hanging. There is no recent information about the execution of capital punishments. The last officially announced execution took place in 1977. Since the Libyan government has exterminated some anti-regime groups in the end of the nineties, no verifiable information about internal opposition has been obtained. After 11 September 2001, the Libyan government tends to accuse all opponents of the regime of membership or ties with the Al Qaeda organisation. ...

The respect for human rights leaves a serious lot to desire. The elementary conditions for a State based on the rule of law are missing; there is no freedom of expression, no freedom of association and assembly and there are no elections. There are no political parties. There are reports about ill-treatment and torture during detention. .. .

Until the autumn of 2001 all Libyans having stayed more than half a year abroad were, upon return to Libya , questioned about their activities and contacts abroad. Since then the Libyan authorities in principle no longer use this six-month-term, but all persons having stayed for a lengthy period abroad will, upon return, be questioned by the Libyan security services. This does not only concern unsuccessful asylum seekers but all returnees. There is no legal basis in Libyan law for this procedure, but this treatment forms part of the standard practice of the Libyan authorities. The civil servants in Libya entrusted with border control determine on the basis of stamps in the travel documents of returning Libyans who must be questioned. The duration of the stay abroad is an important cause to submit returning Libyans to questioning by the Libyan security services. The interest of the Libyan security services in particularly targeted at possible opposition activities, critics on the Libyan political system and/or contacts with opponents of the Libyan regime abroad. In so far as appears, an asylum application abroad is in itself no ground for a particular interest by the Libyan authorities. The Libyan government has many security and intelligence services (also abroad). The members of these services often have a good insight in the activities and contacts of Libyans abroad.

Unsuccessful asylum seekers, who mostly will have stayed for a longer period outside of Libya , will in all likelihood be detained for some days for the purpose of questioning. It can be assumed with certainty that unsuccessful asylum seekers who are being expelled in an accompanied manner will be temporarily detained and questioned. It would, however, also occur that unsuccessful asylum seekers are only briefly questioned upon their return to Libya . In so far as known, the manner of acting of the Libyan authorities does not necessarily have repercussions for further stay in Libya . Examples are known of removed unsuccessful asylum seekers who, after their forced return, have been able to resume their existence in Libya in an unhindered manner. ...

There is an essential difference between the treatment of persons suspected of oppositional activities in or outside of Libya and persons not so suspected. Suspicion of oppositional activities is sufficient for longer detention and will often lead to conviction. Association with an opponent of the regime is already sufficient cause to detain and question a person for a longer period. In case an unsuccessful asylum seeker, after having returned to Libya , is detained, ill-treatment or torture during detention cannot be excluded. ... ”

6 . Netherlands policy on Libyan asylum seekers

80 . The respondent Government ’ s policy on asylum seekers has been devised by the Minister of Immigration and Integration and her predecessor and successor, the Deputy Minister of Justice, on the basis of country reports published by the Minister of Foreign Affairs on the countries of origin of asylum seekers. Since 20 November 2002 no official country report on Libya had been drawn up by the Netherlands Ministry of Foreign Affairs.

81 . On 7 July 2006, the Minister of Immigration and Integration adopted a moratorium on decisions on asylum applications and expulsions ( besluit- en ver trekmoratorium ) until 1 January 2007 for Libyan asylum seekers. This policy decision, as set out in the WBV ( Wijzigingsbesluit Vreemdelingencirculaire 2000 ) 2006/28 of 16 August 2006, was based on the contents of the official report on Libya drawn up by the Minister of For eign Affairs on 20 November 2002 according to which it could not be excluded, in case an unsuccessful asylum seeker would be detained after his or her return to Libya, that ill-treatment or torture would occur in detention. A temporary stay of removals to Libya would allow awaiting further developments and a possible clarification of the situation. Libyans posing a threat to public order or national security were excluded from the moratorium. On 15 December 2006, the Minister decided to prolong this moratorium until 30 June 2007. It has not been prolonged any further.

82 . An internal memo (“ minuut ”) – access to which can be requested - of the Netherlands immigration authorities dated 18 May 2009 and concerning the preparation of a decision of the Deputy Minister of Justice on an asylum request by a Libyan national indicated that the asylum account of the person concerned lacked credence. The memo indicated that a residence permit was to be granted nevertheless because;

“To date there is not clarity about the fate of returning Libyan asylum seekers. It has been decided to give Libyan asylum seeker[s] the benefit of the doubt and to accept upon return (already quickly) [a] violation of Article 3 of the Convention on grounds of a risk considered real of detention, ill-treatment or torture.

In the case at hand, there are no public order aspects.”

C. Relevant international materials

1. The 2008 Country Report on Human Rights Practices in Libya by the State Department of the United States of America

83 . In its 200 8 Country Report on Human Rights Practices – Libya , dated 25 February 2009 , the USA State Department observed :

“ c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The law prohibits such practices, but security personnel routinely tortured prisoners during interrogations or as punishment. Reports of torture were difficult to corroborate because detainees often were held incommunicado.

The reported methods of torture and abuse included chaining prisoners to a wall for hours; clubbing; applying electric shock; applying corkscrews to the back; pouring lemon juice in open wounds; breaking fingers and allowing the joints to heal without medical care; suffocating with plastic bags; depriving detainees of sleep, food, and water; hanging by the wrists; suspending from a pole inserted between the knees and elbows; burning with cigarettes; threatening with dog attacks; and beatings on the soles of the feet. ...

Prison and Detention Center Conditions

...

d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest and detention, but the government did not observe these prohibitions. As in previous years, there were reports that security forces arbitrarily arrested and detained citizens during the year.

In October 2007 security services detained a regime critic, Fouad Nassar al-Mahmoudi, upon his return from a long stay abroad. At year ’ s end al - Mahmoudi remained in incommunicado detention.

There were no developments in the case of Mahmoud Muhammad Boushima, a government critic resident abroad since 1981, whom police arrested during a 2005 trip to the country, according to an Amnesty International r eport. .. .

Arrest and Detention

The law stipulates that detainees can be held for investigation after being arrested up to eight days. In practice security services can hold detainees indefinitely. Although the law requires that detainees be informed of the charges against them, it was not enforced in practice. The law states that in order to renew a detention order detainees must be brought before a judicial authority at regular intervals of 30 days, but in practice security services detained persons for indefinite periods without a court order.

By law, bail must be set for pretrial detainees, and detainees must have access to counsel. A public defender must be appointed for anyone who cannot afford a private attorney. Detainees reportedly did not receive information on their right to legal representation during interrogation.

Incommunicado detention remained a problem. The government held many political detainees incommunicado for unlimited periods in unofficial detention centers controlled by branches of the security services. The government reportedly held political detainees, including as many as 100 associated with banned Islamic groups, in prisons throughout the country, but mainly in the Ayn Zara, Jadida, and Abu Salim prisons in Tripoli. Some human rights organizations and foreign diplomats speculated there were 2,000 political detainees, many held for years without trial. Hundreds of other detainees may have been held for periods too brief to permit confirmation by outside observers. ...

d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons

The law stipulates that “ each citizen, during times of peace, may move freely, choose the place where he or she wishes to live, and may return to the country and le ave whenever he or she chooses.” The government generally did not restrict the freedom of movement within the country, but freedom to travel outside the country was at times restricted by the arbitrary seizure or non-issuance of passports. ...

The law does not allow, nor did the government impose, forced exile as a punishment. The government continued to encourage dissidents abroad to return and publicly promised their safety. There were numerous reports, however, that the government detained dissidents who returned from exile. The government reportedly interrogated students returning from study abroad and at times discouraged students from studying abroad, claiming they would be recruited to work as foreign agents against the country. ”

2. Amnesty International public statement of 29 May 2009 on a fact-finding mission to Libya in May 2009

84 . On 29 May 2009 Amnesty International issued a public statement “ Libya : Amnesty International completes first fact-finding visit in over five years”. This statement reads in its relevant part as follows:

“ A human rights fact-finding team from Amnesty International visited the Great Socialist People ’ s Libyan Arab Jamahiriya from 15-23 May 2009, the first such visit to the country by the organization that the Libyan authorities have permitted since 2004.

During the visit, which was undertaken at the invitation of and facilitated by the Gaddafi International Charity and Development Foundation (GDF), headed by Saif al-Islam al-Gaddafi, Amnesty International ’ s delegates discussed the organization ’ s longstanding human rights concerns with senior government officials, met representatives of civil society institutions and obtained access to a number of prisoners held on security grounds or detained as irregular migrants. However, Libyan security officials prevented two Amnesty International delegates from travelling to Benghazi , as planned, in order to meet families of victims of enforced disappearance and also denied them access to several prisoners.

In meetings with senior government officials, including the General Secretaries of the People ’ s Committees (ministries) of Justice and Public Security (interior), the President of the High Court and other judicial officials, Amnesty International sought clarification of the powers and practices of the security forces, notably the Internal Security Agency (ISA), and urged that the security forces be subjected to independent oversight and be held fully accountable under the law. Currently, the ISA appears to have unchecked powers in practice to arrest, detain and interrogate individuals suspected of dissent against the political system or deemed to present a security threat, to hold them incommunicado for prolonged periods and deny them access to lawyers, in breach even of the limited safeguards set out in Libya ’ s Code of Criminal Procedure. Such detainees may then be charged with public security offences and tried before the State Security Court , created in 2007, whose procedures do not satisfy international standards for fair trial and which is reported, in some cases, to have sat within the confines of Tripoli ’ s Abu Salim Prison.

Amnesty International urged the authorities to take concrete steps to prevent torture or other ill-treatment of prisoners, including detainees being held incommunicado for interrogation who are particularly at risk, and to clarify the fate and whereabouts of victims of enforced disappearance.

In Tripoli , Amnesty International delegates were permitted access to prisoners being held at three prisons, Jdeida Prison, which is administered by the General People ’ s Committee of Justice, and ‘ Ayn Zara and Abu Salim prisons, apparently under the control of the General People ’ s Committee of Public Security. Amnesty International was not permitted access to several other prisoners, however, on the grounds that their cases were said to be still before the courts.

At Abu Salim Prison, site of a notorious incident in 1996 in which up to several hundred prisoners are reported to have been killed by guards in circumstances that still remain unclear, Amnesty International interviewed several prisoners who have been held since they were returned to Libya by US and European authorities in 2005-2007. They included former inmates of secret US detention centres who were held in prolonged, unacknowledged detention at secret sites as suspects in the “war on terror”.

Another prisoner held in similar circumstances, Ali Mohamed Abdelaziz Al-Fakheri, known as Ibn Al Sheikh Al Libi, was reported by the Libyan media to have committed suicide on 10 May 2009 while held in Abu Salim Prison, having been detained since he was returned to Libya in late 2005 or early 2006. Amnesty International was not permitted by the Libyan authorities to interview the prison guards in whose custody he was at the time of his death or the forensic doctor who examined his body, or to obtain a copy of the autopsy report.

The prisoners at Abu Salim interviewed by Amnesty International also included a former detainee at Guantánamo Bay , Cuba , who the US authorities returned to Libya in 2007. However, another former Guantánamo inmate also now held at Abu Salim Prison, declined to be interviewed by Amnesty International. The continuing imprisonment of former Guantánamo Bay detainees following their release by the US authorities and return to Libya provides grounds for concern that other Libyans currently being held in Guantánamo may also face immediate arrest and indefinite imprisonment without trial or after unfair trials if they are returned to Libya by the current US administration.

Amnesty International was also able to undertake a brief visit to the Misratah Detention Centre, some 200 kilometres from Tripoli , in which several hundred alleged irregular migrants from other African countries are held in severely overcrowded conditions, and to interview several of those held there. ...

Worryingly, Misratah, like Abu Salim Prison in Tripoli , appears to be controlled by the General People ’ s Committee for Public Security rather than the Justice Committee, and to be outside the jurisdiction of the public prosecutor or other judicial authorities. ...

There is also virtually no opportunity for detainees to lodge complaints of torture and other ill-treatment to competent judicial authorities. ...

Sadly, while the visit was in progress, Amnesty International learnt of the death in an Amman hospital of Fathi el-Jahmi, a prisoner of conscience who had been held continuously since March 2004 but was then flown from Libya to Jordan for urgent medical treatment in early May 2009. The organization had previously raised concerns that the deterioration of his health might be due to a long period of detention, large parts of it incommunicado, and to the reported denial of adequate medical care while in custody of the Libyan authorities. The precise cause of his death, and the circumstances in which he became seriously ill while detained at the Tripoli Medical Centre, where he had been held since July 2007, should be clarified at the very least to Fathi el-Jahmi ’ s family members. ”

3. Council of Europe material on terrorism

85 . The Council of Europe has produced three international treaties relating to the fight against terrorism, namely:

- the European Convention on the Suppression of Terrorism of 27 January 1977 (ETS 90), which entered into force on 4 August 1978 and which is designed to facilitate the extradition of persons having committed acts of terrorism, and the Protocol of 15 May 2003 amending this Convention (ETS 190) which has not yet entered into force;

- the European Convention on the Prevention of Terrorism of 16 May 2005 (ETS 196), which has not yet entered into force and which seeks to increase the effectiveness of existing international texts on the fight against terrorism and to strengthen member states ’ efforts to prevent terrorism; and

- the European Convention on laundering, search, seizure and confiscation of the proceeds of crime and on the financing of terrorism of 16 May 2005 (ETS 198), which has entered into force on 1 May 2008 and which is designed as an update and extension of the European Convention on laundering, search, seizure and confiscation of the proceeds from crime of 8 November 1990 (ETS 141) by taking into account the fact that not only can terrorism be financed through money laundering from criminal activity, but also through legitimate activities.

86 . Article 4 § 2 of the Protocol amending the European Convention on the Suppression of Terrorism states:

“The text of Article 5 of the Convention shall be supplemented by the following paragraphs:

‘ 2 Nothing in this Convention shall be interpreted as imposing on the requested State an obligation to extradite if the person subject of the extradition request risks being exposed to torture; ... ’ ”

87 . Article 21 § 2 of the European Convention on the Prevention of Terrorism provides:

“Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the person who is the subject of the extradition request risks being exposed to torture or to inhuman or degrading treatment or punishment.”

88 . Furthermore, following its meeting on 14 November 2001 to discuss “Democracies facing terrorism” (CM/AS(2001) Rec 1534), the Committee of Ministers of the Council of Europe adopted on 11 July 2002 “Guidelines on human rights and the fight against terrorism”, These guidelines consist of seventeen principles – derived from various international legal and political texts and the Court ’ s case-law – specifying the limitations which States are to respect in their efforts to combat terrorism.

89 . These guidelines provided, inter alia :

“I. States ’ obligation to protect everyone against terrorism

States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. This positive obligation fully justifies States ’ fight against terrorism in accordance with the present guidelines.

II. Prohibition of arbitrariness

All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision. ...

IV. Absolute prohibition of torture

The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted. ...

XII. Asylum, return (“refoulement”) and expulsion

1. All requests for asylum must be dealt with on an individual basis. An effective remedy must lie against the decision taken. However, when the State has serious grounds to believe that the person who seeks to be granted asylum has participated in terrorist activities, refugee status must be refused to that person.

2. It is the duty of a State that has received a request for asylum to ensure that the possible return (“refoulement”) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion. ... ”

COMPLAINTS

90 . The applicant complained that, if expelled to Libya, he would be exposed to a real risk of treatment contrary to Article 3 of the Convention on account of his opposition activities in Libya and for the NFSL and LLHR, and the nature of the suspicions having arisen against him in the Netherlands of which the Libyan authorities have undoubtedly become aware.

91 . He further complained under Article 13 in conjunction with Article 3 of the Convention in respect of the decision to impose an exclusion order on him in that – as a result of not having been granted access to the material underlying the official reports on the basis of which an exclusion order had been imposed – he was been denied an effective chance for a rebuttal of the grave allegation of posing a threat to national security on which the exclusion order is based.

THE LAW

92 . The applicant complained that his expulsion to Libya would expose him to a real risk of being subjected to treatment proscribed by Article 3 of the Convention. He further complained under Article 13 in conjunction with Article 3 of the Convention that he did not have an effective remedy in respect of the exclusion order imposed on him.

93 . Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Arguments of the parties

1. The respondent Government

94 . The respondent Government submitted that, in view of the Court findings in Jabari v. Turkey (no. 40035/98, § 39, ECHR 2000 VIII) and I.I.N. v. the Netherlands ((dec.), no. 2035/04, 9 December 2004), the fact that the AIVD believes the applicant to be a threat to national security necessitates an extremely thorough examination of whether the applicant has indeed made a plausible case that there are substantial grounds for concluding that he would be at risk of treatment in violation of Article 3 of the Convention in case of his expulsion to Libya. Considering the absolute character of the prohibition set out in Article 3, this position is based on the principle that “a rigorous scrutiny necessarily must be conducted of the claim of the applicant that his deportation will expose him to trea tment prohibited by Article 3”.

95 . The Government further submitted that thorough investigation is necessary not only to determine if the alien in question has adequately established that he can expect to be subjected to treatment prohibited by Article 3 upon returning to his country of origin but also because it is necessary to ensure that the State is not simply forced to resign itself to the alien ’ s presence which may represent a threat to the fundamental rights of its citizens, particularly in cases like the present one where national security is at stake. Relying on the Court ’ s considerations in the cases of Vilvarajah and Others v. the United Kingdom (30 October 1991, § 111, Series A no. 215), Pranjko v. Sweden ((dec.), no. 45925/99, 23 February 1999) and Taheri Kandomabadi v. the Netherlands ((dec.), nos. 6276/03 and 6122/04, 29 June 2004), the Government considered that the guiding principle here is that the “mere possibility of ill-treatment” is insufficient to assume that expulsion is incompatible with Article 3 of the Convention.

96 . In assessing the relevant risk, the Government found significant to note that the applicant has always been vague about his actual activities, has never provided any specifics about his political activities, and has not submitted any verifiable information about these alleged activities at any stage of the case. Also the statements of the NFSL and the LLHR, which are quite general in nature, do not contain any details about the applicant ’ s specific activities. Although the applicant maintained that a large proportion of the opposition group to which he belonged in Libya was arrested, he himself always managed to stay out of trouble and remained in Libya for nearly a year and a half following the events that allegedly formed the basis for his decision to leave whereas, in that period, the Libyan authorities showed no interest in him. The Government further argued that the applicant ’ s claim that he has reason to fear inhuman treatment in Libya is not aided by the fact that he left Libya legally, bearing travel documents in his own name and that, according to his statements, his passport was checked at the Libyan border.

97 . While the Government conceded that the applicant ’ s involvement in the Rotterdam jihad trial was discussed in the media, they submitted that his acquittal also received broad media coverage. The Government felt that the mere fact that the trial attracted considerate attention is not sufficient reason to conclude that it is plausible that upon his return, in the light of the current situation in Libya, will necessarily be subjected to treatment contrary to Article 3 of the Convention.

98 . The Government admitted that the general human rights situation in Libya still gives cause for concern. However, according to the Government, there is no justification for assuming that the applicant has established that he can expect treatment prohibited by Article 3 solely on the basis of a description of the human rights situation in Libya . The suppositions, conjecture and speculation put forward by the applicant in the course of the proceedings do in no way alter this conclusion. The Government submitted that they did not posses such specific and clear information on what the applicant can expect upon his return to Libya that they would be obliged to halt his expulsion. Not a single concrete fact has been adduced that would demonstrate that the applicant has been specifically targeted by the Libyan authorities. The fact that one cannot rule out that the applicant may be regarded as an object of suspicion is, in the Government ’ s opin ion, no obstacle for expulsion.

99 . The respondent Government concluded that it has not been established that, if expelled, the applicant would run a real risk of being subjected to treatment contravening Article 3 of the Convention.

2. The applicant

100 . The applicant refuted the Government ’ s contention that there were no substantial grounds for believing that he would be exposed to a real and personal risk of being subjected to treatment in breach of Article 3 in Libya . He had given detailed and verifiable statements about individual members of the opposition group to which he had belonged in Libya and information about this group ’ s activities as well as his own activities for that group. The opposition group had been “fed” from abroad by the NFSL as certified in written declarations made by the NFSL in the proceedings on his asylum request. In these asylum proceedings, the Netherlands authorities had failed to carry out a thorough and comprehensive investigation into his claims which, in his opinion, was called for given Libya ’ s extremely poor human rights standard particularly towards (orthodox Muslim) dissidents.

101 . As regards the Rotterdam jihad trial, the applicant emphasised that it was primarily the mass media attention for this trial which had caused a further substantial effect on the risk of him being subjected to treatment proscribed by Article 3 of the Convention if expelled to Libya . Whereas after his acquittal, he produced more and more compelling declarations by serious non ‑ governmental organisations on Libya, the Netherlands authorities had not undertaken any investigating activity which can be described as rigorous scrutiny for the purposes of Articles 3 and 13 of the Convention in order to rule out that he ran a real risk of torture or ill ‑ treatment in Libya.

102 . The applicant further argued that, in view of the reasons why the respondent Government adopted in July 2006 a moratorium on decisions on asylum requests and on expulsions of Libyan nationals, the boldness with which the respondent Government maintained their denial of the existence of a “real risk” under Article 3 of the Convention in his case was questionable.

103 . Relying on the Court ’ s considerations in the cases of Hilal v. the United Kingdom ( no. 45276/99, § 63) , ECHR 2001 ‑ II ), Said v. the Netherlands ( no. 2345/02, § 51 , ECHR 2005 ‑ VI ), Bader and Kanbor v. Sweden ( no. 13284/04, § 45 , ECHR 2005 ‑ XI ), D. and Others v. Turkey (no. 24245/03, §§ 46-48 , 22 June 2006 ), t he applicant considered that the Netherlands authorities have fallen short, as regards the scope and meticulousness, of their obligation under Article 3 and Article 13 of the Convention to investigate meticulously and assess adequately his claim that in Libya there existed for him a real risk of exposure to treatment contrary to Article 3. The Netherlands authorities trivialised his role in and activities for the opposition in Libya and abroad without considering these in the light of statements of the NFSL, the LLHR and Amnesty International, and fully disregarded the consequences of the (publicity of the) Rotterdam jihad trial and of him being declared a danger to national security as a Islamic terrorist suspect and the imminent dangers connected to this imputation for the applicant if he were to be expelled to Libya.

B. Third-party interveners

1. Comments submitted jointly by the Governments of Lithuania, Portugal, Slovakia and the United Kingdom

104 . The Governments of Lithuania, Portugal, Slovakia and the Uni ted Kingdom observed that in the case of Chahal v. the United Kingdom , ( 15 November 1996, Reports of Judgments and Decisions 1996 ‑ V ) the Court had stated the principle that in view of the absolute nature of the prohibition of treatment contrary to Article 3 of the Convention, the risk of such treatment could not be weighed against the reasons (including the protection of national security) put forward by the respondent State to justify expulsion. Yet because of its rigidity that principle had caused many difficulties for the Contracting States by preventing them in practice from enforcing expulsion measures.

105 . The Governments observed in that connection that whilst Contracting States could obtain diplomatic assurances that an applicant would not be subjected to treatment contrary to the Convention, the Court had held in the above-mentioned Chahal case that Article 3 required examination of whether such assurances would achieve sufficient practical protection. As had been shown by the opinions of the majority and the minority of the Court in that case, identical assurances could be interpreted differently. Furthermore, it was unlikely that any State other than the one of which the applicant was a national would be prepared to receive into its territory a person suspected of terrorist activities. In addition, the possibility of having recourse to criminal sanctions against the suspect did not provide sufficient protection for the community. The individual concerned might not commit any offence (or else, before a terrorist attack, only minor ones) and it could prove difficult to establish his involvement in terrorism beyond reasonable doubt, since it was frequently impossible to use confidential sources or information supplied by intelligence services. Other measures, such as detention pending expulsion, placing the suspect under surveillance or restricting his freedom of movement provided only partial protection.

106 . Terrorism seriously endangered the right to life, which is the necessary precondition for enjoyment of all other fundamental rights. According to a well-established principle of international law, States could use immigration legislation to protect themselves from external threats to their national security. The Convention did not guarantee the right to political asylum. This was governed by the 1951 Convention relating to the Status of Refugees, which explicitly provided that there was no entitlement to asylum where there was a risk for national security or where the asylum seeker had been responsible for acts contrary to the principles of the United Nations. Moreover, Article 5 § 1 (f) of the Convention authorised the arrest of a person “against whom action is being taken with a view to deportation...”, and thus recognised the right of States to deport aliens.

107 . It was true that the protection against torture and inhuman or degrading treatment or punishment provided by Article 3 of the Convention was absolute. However, in the event of expulsion, the treatment in question would be inflicted not by the signatory State but by the authorities of another State. The signatory State was then bound by a positive obligation of protection against torture implicitly derived from Article 3. Yet in the field of implied positive obligations the Court had accepted that the applicant ’ s rights must be weighed against the interests of the community as a whole.

108 . In expulsion cases the degree of risk in the receiving country depended on a speculative assessment. The level required to accept the existence of the risk was relatively low and difficult to apply consistently. Moreover, Article 3 of the Convention prohibited not only extremely serious forms of treatment, such as torture, but also conduct covered by the relatively general concept of “degrading treatment”. And the nature of the threat presented by an individual to the signatory State also varied significantly.

109 . In the light of the foregoing considerations, the intervening Governments argued that, in cases concerning the threat created by international terrorism, the approach followed by the Court in the Chahal case (which did not reflect a universally recognised moral imperative and was in contradiction with the intentions of the original signatories of the Convention) had to be altered and clarified. In the first place, the threat presented by the person to be deported must be a factor to be assessed in relation to the possibility and the nature of the potential ill-treatment. That would make it possible to take into consideration all the particular circumstances of each case and weigh the rights secured to the applicant by Article 3 of the Convention against those secured to all other members of the community by Article 2. Secondly, national-security considerations had to influence the standard of proof required of the applicant. In other words, if the respondent State adduced evidence that there was a threat to national security, stronger evidence had to be adduced to prove that the applicant would be at risk of ill-treatment in the receiving country. In particular, the individual concerned had to prove that it was “more likely than not” that he would be subjected to treatment prohibited by Article 3. That interpretation was compatible with the wording of Article 3 of the United Nations Convention against Torture, which had been based on the case-law of the Court itself, and took account of the fact that in expulsion cases it was necessary to assess a possible future risk.

2. Comments submitted by the AIRE Centre

110 . In their comments, the AIRE Centre drew attention to a number of declarations, resolutions and other pronouncements made by the various bodies of the Council of Europe other than the Court which, taken together, formed a consensus that made clear that a State party to the Convention could not remove an individual regardless of the threat he or she posed once it had been established that his or her refoulement would lead to a real risk of that individual being exposed to treatment prohibited by Article 3 of the Convention.

111 . Pointing out that all Council of Europe Member States were also parties to the International Covenant on Civil and Political Rights (“ICCPR”), the AIRE Centre further referred to General Comments and case-law of the Human Rights Committee, which had been established by the United Nations under the First Optional Protocol to the ICCPR. From this material it was apparent that the Human Rights Committee unambiguously considered as absolute the ban on expulsion of individuals to face treatment that might violate Article 7 of the ICCPR, which provision contained a prohibition of torture and cruel treatment or punishment.

112 . Finally, the conclusion that the rule prohibiting expulsion to face torture or ill-treatment constituted a rule of customary international law had been drawn by many distinguished publicists in academic literature as well as by a multitude of international bodies. Thus, the AIRE Centre submitted, the rule was binding on all States, even those which were not a party to any international agreement. The rule had arguably also attained the status of ius cogens , meaning that it had become a peremptory, non-derogable norm of international law.

3. Comments submitted jointly by Amnesty International Ltd., the Association for the Prevention of Torture, Human Rights Watch, the International Commission of Jurists, Interights and Redress

113 . These interveners focused on the principle of non-refoulement as enshrined in various instruments and interpreted by international courts.

114 . As to the nature and degree of the risk of torture or ill-treatment that triggered the refoulement prohibition, the interveners inter alia referred to the case-law of the Committee against Torture, according to which, in the assessment of the question whether an individual was personally at risk, particular attention was paid to any evidence that he or she belonged, or was perceived to belong, to an identifiable group which in the receiving country had been targeted for torture or ill-treatment. Organisational affiliation was a particularly important factor in cases where the individual belonged to a group which had been designated as a “terrorist” or “separatist” group, threatening the security of the State and for this reason targeted for particularly harsh forms of repression. In such cases, the prohibition of refoulement could come into play even if there was no evidence that the person concerned had been ill-treated in the past or had been personally sought by the authorities of the State of return, or when the general human rights situation in that country had improved. Instead, the Committee against Torture focused on the assessment of how the State in question treated members of these groups and whether sufficient evidence had been provided that that State would believe the particular individual to be associated with the targeted group. In this latter context, the nature and profile of the individual ’ s activities in his or her country of origin or abroad, as well as the amount of publicity surrounding his or her case, were particularly important factors.

115 . Because of the specific nature of torture or ill-treatment, it had been generally recognised by the Strasbourg Court and other tribunals that the burden of proof could not rest with the person alleging it alone, the more so as the person concerned and the State did not always have equal access to the evidence. It had therefore been considered sufficient for the individual to make out an “arguable” or “prima facie” case of the risk of torture or ill-treatment for the refoulement prohibition to be triggered, with a subsequent burden on the expelling State of refuting that claim.

116 . The view, as acknowledged by the Court in the case of Chahal (cited above), that diplomatic assurances did not suffice to offset an existing risk of torture was shared by a growing number of international human rights bodies and experts. According to the interveners, no “compensating measures” could affect the peremptory ius cogens nature of the prohibition against torture, and the obligations to prevent its occurrence, which were plainly unaffected by bilateral agreements.

4. Comments submitted jointly by Liberty and Justice

117 . These interveners stressed the unconditional nature of Article 3 of the Convention, meaning that the prohibition of refoulement to ill-treatment applied regardless of the behaviour displayed, or activities engaged in, by the individual concerned. The Strasbourg Court had consistently subscribed to this view; it had been replicated in other international and regional human rights instruments; and had been confirmed by national as well as international tribunals such as, for instance, the Supreme Court of New Zealand, the Committee against Torture, the UN Human Rights Committee and the Inter-American Commission on Human Rights.

118 . National security concerns being merely examples of the consequences of possible activities of the individual, alleged terrorist activity which might give rise to such concerns was thus not qualitatively different from any other undesirable, dangerous or criminal conduct. Accordingly, in assessing whether or not the removal of a person would expose him or her to treatment contrary to Article 3 in the receiving country, there was no room either for taking into account the fact, nature or degree of the national security threat posed by the person concerned or for a balancing exercise in which national security concerns were weighed against the risk of ill-treatment. Different means of countering a national security threat were available to States, without it being necessary to resort to removal to torture or other ill-treatment.

119 . Any change in this approach would amount to a dilution of a fundamental human right in the name of the fight against terrorism and would ultimately have a long-term corrosive effect on democratic values and the Convention as a whole.

C . The Court ’ s assessment

120. The Court considers, in the light of the parties ’ submissions and the third ‑ party comments, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without pre judging the merits of the case.

Santiago Quesada Josep Casadevall Registrar President